Pregnancies and human life are older than recorded time, and so, it follows, are abortions. The procedures by which abortions have been conducted, however, have only very recently in human history been recognized in law and made safe by regulations.
In 1973, the Roe v Wade decision declared abortion a constitutional right within certain health-related restrictions, and all states have been bound to safely implement that decision for nearly half a century. In Montana, however, the legalization of abortion became an issue two years before the Roe decision.
The 1971 legislative session was the setting for the debate of a subject which had been taboo in most public forums until that time. Young freshman Representative Dorothy Bradley introduced an abortion legalization measure that immediately triggered an explosion of shock and red-hot reaction across the state. The Bradley bill only survived long enough to be the subject of one procedural debate and received only five votes. All Republicans, including myself, voted to keep the bill tabled in committee.
So spirited and overwhelming was the spontaneous opposition, that the number of the abortion bill was confused with that of another bill, and legislators, even realizing the obvious mistake, overwhelmingly killed both.
The specific right to privacy in the 1972 Montana Constitution, and the Roe interpretation of the federal constitution based on that implied right, suddenly transformed abortion rights from the unspeakable into the status quo. The 1970s were thus the time when the esoteric question of when life begins surfaced prominently in troubled discussions, both public and private, across the country.
Some of those discussions occurred between me and a fellow Montana legislator, Polly Holmes of Billings. Holmes was both a spirited idealist and a deep thinker. Our topic was when life began — at the time of conception or at the time of viability? The Roe v Wade framework, based on dividing the nine-month human gestation period into “trimesters,” seemed imprecise and arbitrary to Holmes and me.
The conclusion we came to was that there was an accepted consensus that life ended with the cessation of the brain function. If a “brain dead” person was legally dead, then we reasoned that a developing fetus could not be considered a life until it emitted detectable brain waves. Nothing arbitrary about that, we concluded. And so whether to have an abortion should be merely the choice of a pregnant woman prior to brain function, but subject to the protection of the laws of society afterward.
We shopped our idea around to other legislators, but found no support for it. None. The sides had become locked in. The pro-choice faction was uncompromisingly behind the verdict of Roe. The pro-life people were unyielding in their belief that life began exactly at the instant of conception.
I didn’t realize it at the time, but I think the uncompromising nature of the abortion issue became the symbol for an age of uncompromisable issues, which sums up where we are today.
If the U.S. Supreme Court abandons the national application of Roe, the whole question of abortion will be thrown back to the states, where it will be legal in some and not in others. Women wealthy enough to travel will be little affected. All others will be forced into the unregulated risks of the back alley.